CC TO BE ISSUED BY MCGM ONLY AFTER INDIVIDUAL

AGREEMENT (PAAA) EXECUTED AND REGISTERED BY

THE DEVELOPERS

MUNICIPAL CORPORATION OF GREATER...

V/S
7, M.M.R.D.A ON 23 JUNE 2014

Bombay High Court

Municipal Corporation of Greater ... vs.7, M.M.R.D.A on 23rd
June, 2014

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Bench: Anoop V. Mohta, A.A. Sayed

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WP U135-14-24.6.2014.sxw

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1135 OF 2014
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Municipal Corporation of Greater Mumbai, Through the

Municipal Commissioner, having its office at Mahapalika
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Marg, CST, Mumbai-400 001.................. Petitioner

Versus
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1. State of Maharashtra
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Mantralaya, Mumbai-400 032

2. Commissioner of Police, having his address at Crawford

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Market, Mumbai.
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2 A) Deputy Commissioner of Police, (Zone-9), having address

at Hill Road, Bandra (West), Mumbai-400 050.

2 B) Assistant Commissioner of Police, having address at Off

D.N. Nagar, Above D.N. Nagar Police Station, Link Road,
Andheri (West), Mumbai-400 052.

3. Senior Police Inspector, Oshiwara Police Station, Mumbai.

4. Sardar Baldevsingh Sohansingh
Occupation- Not Known, Age- Adult, having his address at
Sohansingh Mansion, Behind H.P. Petrol Pump, S.V. Road,
Jogeshwari (W), Mumbai

5. Satish Raghunath Patil

Occupation- Not Known, Age - Adult, having his address at
Sarah Corporation, Shop No. 2 & 3, Bldg. No.1, Apna Ghar
CHS, N.S. Phadke Marg, Near Telli Galli Signal, Andheri (E),
Mumbai - 400 069.

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6. Mrs. K. Leela Sadanand,
Occupation- Not known, Age Adult, residing at Room No. 67,

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1st Floor, Sohansingh Mansion, Behind H.P. Petrol Pump, S.V.
Road, Jogeshwari (W), Mumbai - 400 102.

7. M.M.R.D.A
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Having its address at Bandra Kurla Complex, Bandra (E),
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Mumbai -400 051. .. Respondents
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Mr. E.P. Bharucha, Senior Counsel with Mr. S.U. Kamdar,

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Senior Counsel with Mr. A.Y. Sakhare, Senior Counsel with

Ms. Komal Punjabi with Ms. Trupti Puranik with Ms. Shobha
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Ajitkumar i/by Mr. J.J. Xavier for the Petitioner - BMC.

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Mr. D.G. Khambata, Advocate General, with Ms. Uma

Palsuledesai, AGP for Respondent Nos. 1 to 3.
Ms. Kiran Bhagalia for Respondent No.7
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Mr. K.K. Malpathak for Respondent No.6

Mr. V.P. Sawant for MHADA
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Mr. Sardar Baldevsingh Sohansingh Respondent No. 4 present

in person.

Mr. Satish Raghunath Patil, Respondent No.5 present in

person
 CORAM: ANOOP V. MOHTA AND
A.A. SAYED, JJ,
DATE: 23 JUNE 2014.
P.C.:
This matter was listed from time to time. We have heard all the
Counsel including the Counsel in other matters which were
listed along with this matter for their respective suggestions.
We have also heard the learned Advocate General and Counsel
for MHADA.

2. This Petition has been filed by Municipal Corporation of

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Greater Mumbai seeking prayers against the State of
Maharashtra and concerned police personnel to take steps for

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forcible eviction of the occupants of the building known as
"Sohansingh Mansion" as also other buildings which are

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declared to be dilapidated and dangerous by the Corporation
and to issue appropriate guidelines for removal of
non-cooperating occupants of dilapidated and dangerous
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buildings. According to the Corporation, these guidelines are
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necessary so as to avoid any untoward incidents of loss of lives

of the occupants of the said buildings as well as, occupants of
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the adjoining structures and passers-by.

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3. Sometimes owners/builders are non-cooperative and fail to

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take care of their obligations. Sometimes tenants/occupants

do not co-operate. Mere initiation of civil and/or criminal
proceedings for the same is also of no use or effective
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mechanism to evacuate or evict immediately the

non-cooperative tenants/occupants/owners. In view of the
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urgency expressed, we are inclined to pass the following order

based upon the Draft of Minutes of Order prepared and
submitted by the Senior Counsel for the Petitioner-Corporation
and approved by the State Government and MHADA. A copy of
the Draft of Minutes of Order is taken on record and marked
"X" for identification.

4. In light of the problem faced by the Corporation concerning

large number of seriously dangerous and dilapidated
buildings/structures which require to be urgently
vacated/demolished so as to prevent loss of life of the persons
residing therein and/or residing in surrounding localities
and/or people who are passers-by, the Corporation has issued
notices under Section 354 of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as "the said Act")
requiring the occupiers/owners to vacate/pull down the
building(s). In view of the fact that in many of such buildings,
the tenants and/or occupiers are residing and/or unwilling to
vacate the premises inspite of the fact that the building is
dilapidated and dangerous and likely to fall, which would

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cause loss of human life including of the persons who are
refusing to vacate there-from and/or because of the inaction

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on the part of the owners, it has become necessary to pass the
present order.

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5. On one hand, a number of petitions are filed and moved by
the landlord/owner of such buildings seeking direction that
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the Corporation must enforce the notices issued by them
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under Section 354 of the said Act and evacuate/remove the

occupiers and demolish the dangerous and dilapidated
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building(s) after evicting unwilling tenants/occupiers AND on

the other hand, a number of petitions are filed by the occupiers
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and/or tenants of such dangerous and dilapidated buildings

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seeking to challenge the said notices issued under Section 354

of the said Act.
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6. Section 354 of the said Act reads as under-

"Dangerous Structures, Removal of Structures etc. which are
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in ruins or likely to fall” –

(1) If it shall at any time appear to the Commissioner that any

structure (including under this expression any building, wall
or other structure and anything affixed to or projecting from,
any building, wall or other structure) is in a ruinous conditions
or likely to fall or in any way dangerous to any person
occupying, resorting to or passing by such structure or any
other structure or place in the neighborhood thereof, the
Commissioner may by written notice, require the owner or
occupier of such structure to pull down, secure or repair such
structure subject to the provisions of Section 342 and to
prevent all cause of danger there-from.

(2) The Commissioner may also if he thinks fit, require the said
owner or occupier by the said notice either forthwith or before
proceeding to pull down, secure or repair the said structure, to
set up a proper and sufficient hoard or fence for the protection
of passersby and other persons, with a convenient platform
and handrail, if there be room enough for the same and the

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Commissioner shall think the same desirable to serve as a
footway for passengers outside of such hoard or fence."

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7. The Hon'ble Supreme Court in the matter of Makarand

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Dattatreya Sugavkar Vs. Municipal Corporation of Greater
Mumbai 1 in paragraph 20 has observed that:
"The primary object underlying Section 354 is to safeguard the
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public from the danger of being forced to live in a structure
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which includes any building, wall or other structure and which

is in a ruinous condition or is likely to fall or is in any way
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dangerous to any person occupying the same. This Section is

also intended to protect those who may pass by such
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structure. A reading of the plain language of Section 489 gives

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an impression that it is only an enabling provision but if the

same is read keeping in view the purpose of its enactment and
the setting in which it is placed, it becomes clear that the
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Commissioner is duty bound to ensure that the written notice

given to the owner or occupier under Section 354(1) is
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implemented in its 1 (2013) 9 SCC 136 in letter and spirit. The

duty cast upon the Commissioner is in the nature of a public
law obligation and in appropriate case, the Court can issue
direction for its enforcement."

8. According to the Municipal Corporation of Greater Mumbai

in view of the difficulties faced by them in implementation of
such notices under Section 354 of the said Act in the absence
of any specific provisions in the said Act for
removal/evacuation of occupants of dilapidated buildings and
to make it effective and workable considering the human
problems, it is necessary to issue certain guidelines. It is the
case of the Corporation that there is no proper response from
the police and the Corporation officers are not in a position to
enforce the notices under Section 354 of the said Act.

9. Accordingly, for the present, in the absence of any policy in

that behalf, the following guidelines are issued:-

a) The present order will be applicable only in respect of those

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buildings which are highly dilapidated and dangerous and/or
classified in Category C-1 by the Corporation whether owned

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by a private party or by the Corporation or any other authority
and in respect of which building, either a notice under Section

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354 has been issued or the Corporation has issued a Letter of
Evacuation to their tenants and/or occupiers of the buildings.
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b) The Corporation will before classifying a building under
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category C-1, conduct their own independent inspection and

assessment with the help of the Engineers of their Department
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and carry out a survey of such building(s). The report of

Structural Audit shall be taken into account.
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c) The Corporation shall consider the report of Structural

Engineer appointed by the owners and/or occupants
classifying the building as dilapidated and dangerous. If the
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owners and/or the occupants bring conflicting reports on the

status of the building, the Corporation shall refer the matter to
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Technical Advisory Committee (TAC) under the Chairmanship

of Director (ES&P) with at least 3 other members, Viz. City
Engineer, Chief Engineer (DP) and Chief Engineer (P&D).

d) The TAC shall:

i) Carry out a visual inspection of the state of the internal and

external plaster, plumbing, drainage, whether the doors and
windows close properly, whether steel in columns is exposed,
whether there is settlement in the foundation, deflections/
sagging, major cracks in columns/beams, seepages/leakages,
staircase area and column condition, lift well walls, U.G. tank,
O.H. tank column condition, parapet at terraces, chhajas,
common areas, terrace water proofing etc.

ii) Carry out specific tests like ultrasonic pulse velocity test,
rebound hammer test, half cell potential test, carbonation
depth test, core test, chemical analysis, cement aggregate ratio
as may be considered by TAC as necessary.

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e) If it is found after due notice that the building(s) is in a
highly dangerous or in dilapidated condition, then in that

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event, the Corporation shall also make a list of the names of
the tenants and/or occupiers in the said building and the

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carpet area of the premises in their respective occupation and
possession including the floor at which the same has been
occupied.
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f) A copy of such list will be furnished to the landlord and/or

owner/builder of the said building. The Corporation thereafter,
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will issue a notice under Section 354 of the said Act calling
upon such tenants and/or occupiers to vacate the said
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premises and if such notice under Section 354 of the said Act
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has already been issued, then in that event the Corporation

will give 7 days' notice to such tenants/occupiers, copies
whereof will be furnished to the landlord for vacating the said
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building(s). If such tenant and/or occupier are not available,

the Corporation shall affix such notice or Letter of Evacuation
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on any part of such premises.

g) The Corporation shall then take steps to turn off the water,
supply, electric power and gas to such building immediately
before the removal of occupiers.

h) In the case of a municipal owned building(s), the

Corporation will issue Letter of Evacuation to every person in
occupation of the said building or part thereof to vacate the
said building along with their belongings within the said period
of 7 days from date of issuance of such notice of Letter of
Evacuation in respect of municipal owned building(s). The
notice issued to such occupiers shall contain the name of the
occupier and the area in his occupation and also the floor at
which the premises are located. In case, if such tenant and/or
occupier are not available, the Corporation shall affix such
notice or Letter of Evacuation on any part of such premises.

i) In the event, a person occupying such tenement whether of

the privately owned building(s) or building(s) owned by

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Corporation or any other authority refuses to vacate the said
premises, then the police shall remove such person from the

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said premises by using nominal force if required for the same.

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j) The police may use such force as is reasonably necessary to
remove such person and/or occupiers and/or allottee along
with their belongings from the said premises without causing
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damage to their movables.
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k) The Corporation may then demolish such dangerous and

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dilapidated building.
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l) The rights of the tenants and/or occupiers and/or owners in

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respect of the said premises/property will not be affected by

virtue of evacuation or demolition carried out by the
Corporation of such dilapidated and dangerous building in
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exercise of the power under Section 354 of the said Act or by

virtue of the fact that the Corporation is the owner of the
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premises. Such tenant and/or occupier and/or owner will be

entitled to re-occupy the premises in respect of the same area
after the reconstruction of the building subject to the prevalent
provisions of law pertaining to redevelopment of the property
or subject to any arrangement or agreement arrived at by and
between such tenants and/or occupiers with the owner of the
building. Any action of evacuation/removal/demolition will not
affect the inter se rights of owners if there be more than one
owner or there is a dispute as to the title of the property.
m) If there are any pending suits/proceedings and there is any
restraint orders passed, the Corporation shall be free to apply
for vacating and/or modifying such orders, which applications
shall be decided on its own merits and in accordance with law.

n) In respect of the municipal buildings, it shall be the duty of

the Corporation to provide alternate accommodation as early
as possible in any of their premises to such tenant and/or
occupier of the Corporation owned building till and until the
said building is reconstructed by the Corporation or the
tenancy of any of such occupier is determined in accordance

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with law.

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o) In respect of the private owned buildings, if such building
falls in cessed category as contemplated under the provisions

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of the Maharashtra Housing and Area Development Act, 1976,
then in that event, it will be the duty of MHADA/ MBR&RB to
provide temporary alternate arrangement in a transit camp for
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transit accommodation in accordance with law as early as
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possible.
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p) In case privately owned buildings are demolished by the

Corporation in exercise of power under Section 354 read with
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the present order, then the Corporation shall, while granting

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sanction of redevelopment, impose a condition in IOD

(Intimation of Disapproval) that no Commencement Certificate
will be issued under Section 45 of the MRTP Act, 1966 unless
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and until an Agreement either providing a Permanent Alternate

Accommodation in a newly constructed building or a
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settlement is arrived at by and between the tenants and/or

occupiers and the landlord in respect of the said demolished
premises is filed with the Corporation at the earliest.

q) In case of buildings which have suddenly collapsed, to

determine the reasons for such collapse it is desirable that
forthwith a Committee be constituted headed by a former
Municipal Commissioner and consisting of Former Chief
Engineer of MHADA along with a Professor of VJTI and a
Professor of IIT, Powai having expertise in Structural
Engineering as also an employee of the Corporation holding a
post not lower than that of the Director (E.S.&P.) and such
Committee will determine the cause of such collapse and inter-
alia identify whether any Architect and/or Consultant and/or
Municipal officers or other person/s is/are responsible in any
manner whatsoever for such a collapse. The reference to the
Committee will not in any way shall be a hindrance in the
criminal investigations or the proceedings that may have
commenced or may be commenced under the relevant criminal
law. This no way would restrict the State of Maharashtra to

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pass appropriate order for any such inquiry or investigation.

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10. The above order in no way restricts the power and scope
and purpose of Section 354 of said Act. The

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Commissioner/Corporation and its Officers shall act in
accordance with law. These guidelines will not affect any
orders passed in pending proceedings and are not to be read
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and interpreted to restrict or permit the Corporation or any
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party to go beyond the statutory provisions of law. This order is

necessitated essentially to make Section 354 effective and to
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see that human lives are not in any manner compromised. The
Corporation and its officers to follow other pre-steps and
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provisions before issuing Section 354 notices and/or such

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other notices.

11. The list of dilapidated/dangerous C-1 category buildings/

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structures shall be published in advance on the website of the

Corporation so that effective steps can be taken by all
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concerned, by all available modes and methods. A copy of this

order shall also be published on the website of the Corporation
and State of Maharashtra as also other Local Authorities etc.

12. It is reiterated that this order covers only C-1 category

buildings which are unsafe and declared as dangerous, and
the demolition, if any, shall be carried out by the Corporation
in accordance with law and in no manner pre-empts/curtails
the rights of any person/s from objecting and/or approaching
the Court and if a case is made out to pass appropriate orders
on its own merits and in accordance with law. It is also clarified
that during the interregnum, in appropriate cases, the
Corporation would be at liberty to take all safety measures,
including propping up, etc., of the buildings/premises and
enclose/fence the surrounding area in accordance with law.

13. The rights and the contentions of the other parties to raise
and/or agitate distinctive and individual pleas/issues of their
respective matters separately are kept open. All the aggrieved
parties shall be at liberty to approach the Court in case any

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clarification is required. Pendency of this Petition would not
preclude the State Government to come out with appropriate

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policy to address the grievances of the tenants/occupiers or for
that matter, the owners thereof.

(ANOOP V. MOHTA, J.)

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